Cappy’s Replacement…And Other Thoughts

The first question on many people’s minds when they heard Pennsylvania Supreme Court Chief Justice Ralph Cappy was stepping down was: who will replace him?

Actually, the real first question I had a lot of people ask was “Why?” (more on that later), but Cappy’s replacement was a close second.

One name that immediately came to mind was Philadelphia Common Pleas President Judge C. Darnell Jones II. He’s got a good reputation and is well-liked and respected, and Gov. Ed Rendell made no secret this past year of wanting to see him on the court. Jones told me in an email yesterday that he hadn’t been contacted by anyone from Rendell’s office about possibly filling the position.

Of course for someone like Jones, it would be a trade-off. Any appointment would be interim until Cappy’s seat would be up in 2009. Jones, who lost in the Democratic Primary in May running for Supreme Court, would have to weigh being on the court for two years only, versus the gamble of running in 2009 for a 10-year term.

The more probable scenario, according to the people reporter Peter Hall is talking to, is that Rendell would re-appoint current interim Justice Cynthia A. Baldwin to stay on the court and serve out the rest of Cappy’s term.

The move makes a lot of sense. Given all the turnover the court has experienced in the last two years, it would help preserve some continuity. It would also save time and money, because Baldwin has her office already set up and clerks working for her. A new nominee would probably take longer to get confirmed as well.

But as with most things in Pennsylvania politics, you never know for sure until it happens.

Now, as for why Cappy is leaving…right now there are plenty of theories.

By all accounts, Cappy loved being chief justice. He was certainly the strongest and most prominent chief in my 14 years of covering the court, and he clearly relished the role. Knowing that, it’s hard not to speculate.

It does sound from Cappy’s statement that he did a bit of soul-searching after his hip replacement surgery. If you’ve ever been laid up after a serious orthopedic operation – and I know because I’ve had multiple operations on my knees and shoulders — you know that you have a lot of time to reflect and put things in perspective. I have no doubt he might have just decided that he was ready for something new.

But again, given his love for the job, and in light of what he’s gone through the past two years, it does make people wonder.

One attorney in Pittsburgh, looking at the timing of Cappy’s announcement, wondered if perhaps Cappy was “taking one for the team” and announcing his decision to leave now in order to possibly defuse public anger toward the court and help people like Justice Thomas Saylor, who is up for retention in November.

The speculation for the past several months had been that Cappy wasn’t sure about running for retention in 2009 given all the fallout from the pay raise fiasco.

Cappy was very direct in his statement that the controversy had nothing to do with his decision.

However, a number of comments I’ve heard over the past year from various members of the legal community suggested that plenty of people thought the fallout from the pay raise had taken its toll on him.

When I heard the news, I was surprised about the timing. I didn’t necessarily think the flak from the pay raise was the reason. After all, Cappy had already weathered the worst of it. And when he hosted a gathering of judges and journalists in Hershey last December, he was upbeat, confident, and charming, apparently ready to move on with the court’s future.

What struck me though was that Cappy’s announcement came roughly two months after the Legislature passed a bill that severed the link between state and federal judicial compensation, which by all accounts was the biggest change Cappy had been seeking.

It was that link, more than anything, that led a lot of people to support the judicial raise. It was seen as a measure that would remove the cloud of politics that had shadowed discussions about judicial pay.

Even after the pay-raise debacle and the outcry over the Supreme Court’s decision to give the judges back the raise, a number of people in the legal community told me they thought the fallout was worth it, simply because now the judges wouldn’t have to go back to the Legislature asking for money.

In light of the Legislature wiping out that victory, I wonder if Cappy had decided he’d had enough. Right or wrong, he was a leader on the issue, risking nearly all his political capital in the process to get what he thought was best for his judges and the court system. What he worked so hard for has been wiped out.

Cappy wasn’t doing any interviews yesterday, but that’s the question I would ask him, regardless of his public statement: was the severing of the link with federal judicial pay the last straw?

Cappy has served the public for a long time, and he’s entitled to whatever future opportunities he wants to pursue. But I don’t think his leaving is a good thing for the court.

It’s nothing against Justice Ronald Castille. I just think the court, in a very practical way, was much improved under Cappy.

When I covered my first Supreme Court arguments back in the early 1990s, I was appalled. The first three cases were death penalty cases. I remember justices moving around, talking. They didn’t seem to be paying attention and I don’t remember anyone asking any questions. When it came time for them to hear the case I was specifically there to cover, it was evident to me within a few minutes that virtually none of them knew what the case was about or had even read the first few pages of either party’s brief.

Under Cappy the court always seemed well-prepared for oral arguments. Cappy would often announce what the central issue was in each case, then tell the lawyers what points the court was most interested in hearing about. As a reporter it made things easier to cover, but it also made the arguments run smoothly, crisp, and to the point.

I’m also sad to see Cappy go because I think, for all the grief he took, he learned a valuable lesson about dealing with the public. Courts need to be above popular votes and public influence, but there is much to be gained when judges are more accessible to the public and understanding of the public’s concerns. I had the sense that Cappy’s experience following the pay raise had put him more solidly on that path.

–Hank Grezlak, Editor-in-Chief

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